The case of ABC focuses on the duty of disclosure, specifically when a duty is owed to disclose a patient’s hereditary disease to his child.
In 2007, the Claimant’s father, XX, killed her mother. XX was convicted of manslaughter by reason of diminished responsibility and made subject to a restricted Hospital Order under the Mental Health Act 1983.
In June 2009, XX’s clinical team found indication that he had Huntington’s disease (HD). HD is an autosomal dominant trait, so a child of someone afflicted has a 50% chance of inheriting the condition.
The Claimant became pregnant in July 2009. XX made it clear he did not want his daughter to know about the condition, including when she became pregnant as XX did not “want to jeopardize the pregnancy” (para 13). The defendants’ clinicians took the view that they should not override his confidentiality.
XX’s diagnosis of having Huntington’s disease (HD) was subsequently confirmed on 9th November 2009. By the time XX received the confirmed diagnosis, the Claimant was more than 24 weeks pregnant. It is agreed that the last date on which she could have undergone termination was 6 December 2009 (para 16).
The Claimant gave birth in April 2010. On the 4th August 2010, a Mental Health Tribunal directed XX’s conditional discharge subject to requirements. The Claimant was concerned about XX’s discharge. She was subsequently visited by Dr. Olumoroti and a social worker on the 23rd August 2010. Dr. Olumoroti breached confidentiality, accidentally informing her of XX’s diagnosis.
The Claimant brought a claim in negligence and under the Human Rights Act 1998 for breach of Article 8 of the ECHR. It was her case that the Defendant health trusts should have informed her of the potential risk of inheriting HD at a time period that allowed her the choice to terminate her pregnancy.
The issues considered by Yip J are detailed below (para 24).
Counsel for the Claimant identified three potential routes to a duty of care (para 30):
The Defendants denied that the Claimant was their patient, rather that she was a third party to the relationship between each of them and XX. The Defendants also denied that there was any assumption of responsibility. The Defendants said that this is a novel case involving negligent omission in respect of which no duty has ever previously been recognised by the courts. Even if the Claimant could establish the necessary proximity and foreseeability of harm (which was not conceded), it would not be fair, just and reasonable to impose a legal duty in the circumstances of this case. (para 33)
Yip J found that, on the evidence, the Claimant was a patient of the second Defendant’s family therapy team. It was found that this is directly analogous to the situation of a patient undergoing therapeutic intervention. Yip J adjudged this was a case of applying established principles to a new factual situation, not a novel duty situation (para 138). Concerning the duty owed as a patient, Yip J assessed the claim could not be “properly characterised as badly performed family therapy” (para 139). However, the duty owed to the Claimant in these circumstances was quite simply to conduct the therapy with reasonable professional care and skill.
Further, the relevant information did not become known to the Defendants within the context of family therapy. It was acquired in the context of the treatment and management of XX. Yip J determined that, on the evidence before her, participation in family therapy does not bring with it a right to receive confidential information about other participants, and in fact the maintenance of confidence is often an important part of the family therapist’s roles (Para 141). The Claimant was not in a doctor-patient relationship with Dr Olumoroti, who had acquired the information about XX in his role as XX’s treating clinician.
Therefore, Yip J found that the breach that was alleged could not fall within the scope of the duty owed to the Claimant as a patient.
The Claimant also argued that the Defendants’ clinicians assumed responsibility for deciding whether she should be told of XX’s diagnosis. Yip J determined that this did not take the Claimant any further than the doctor-patient argument. There was “no question of the Claimant having relied on the Defendants to undertake the balancing exercise as to whether she should be told of her father’s diagnosis” (para 154).
However, Yip J found on the facts it was fair, just, and reasonable to impose a legal duty of care towards the Claimant on the second Defendant. Yip J determined that it was fair, just and reasonable to impose on the second Defendant a legal duty to the Claimant to “balance her interest in being informed of her genetic risk against XX’s interest in preserving confidentiality in relation to his diagnosis and the public interest in maintaining medical confidentiality generally” (para 188).
Having found a duty, Yip J turned to the question of breach: “Ultimately the question is whether the proper exercise of the duty should have led to the Claimant being alerted to the genetic risk while she was pregnant.” (para 197). Yip J undertook thorough analysis of the expert evidence, and noted that “there is no clear consensus as to what the outcome of the balancing exercise should have been” (para 223). The Claimant was unable to demonstrate that the views of the defendants’ experts are illogical. Therefore, Yip J concluded that “the decision not to disclose was supported by a responsible body of medical opinion and cannot be considered to have amounted to a breach of the duty” (para 231).
Yip J considered the issue of causation independently from the finding that there was no breach of duty. The issue to be determined was whether, on the balance of probabilities, the Claimant would have terminated her pregnancy if the genetic risk has been disclosed to her (para 233).
It was noted that the timescale for the necessary counselling and testing of the Claimant in time for her to undergo a termination would have been very tight, even without allowing for fetal testing (para 237), such that if the Claimant had deferred a decision about whether she would undergo testing herself until after her father had been tested, there would not have realistically been time for her to be tested and arrange a termination (para 238). Yip J concluded that “after allowing for testing and counselling, [C] would probably have reached 22 weeks gestation so that feticide would have been required” (para 239). In analysing what the Claimant would have done, it was relevant that when the Claimant learned the news of XX’s HD, her sister was pregnant and the Claimant decided that her sister should not be told. Yip J noted that “it appears inconsistent for the Claimant to say that she would have reacted to being told during her pregnancy by immediately requesting testing, yet for her not to insist that her pregnant sister be immediately informed so that she could be tested during pregnancy’”(para 245). Yip J stated, “It is impossible for anyone to be certain about what the Claimant would have done if faced with information about her father’s condition in early October 2009. However, I am not required to be certain but rather to decide the issue on a balance of probabilities….. Although I accept that it is possible that she would have sought testing herself, I think it more likely that she would not have done so” (para 252) and concluded that the Claimant had not proved that she would have undergone a termination if notified of the risk during pregnancy. Thus, even if she had established a breach of duty, the Claimant would not have succeeded on the issue of causation (para 253).
Yip J found that her views were not altered by framing this matter as an HRA claim and although the Claimant’s “Article 8 rights were plainly engaged, the interference with them was justified and proportionate (para 257).
As such, the claim was dismissed.
Courtney Step-Marsden, a clinical negligence barrister at Outer Temple commented on the case:
This case arose in the context of tragic circumstances.
Yip J’s analysis of the duty of care provides a helpful reminder of the importance of the whole factual matrix in determining whether the duty arises in novel claims, taking into account the methods, extent and purpose of communication.
Having established a duty of care, there was a clear tension between XX’s confidentiality and the Claimants interest in knowing that she and her fetus may have Huntington’s Disease. The duty required a careful balancing exercise between the patient’s interests as to confidentiality and the third party’s interest in being informed of the risk of Huntington’s Disease.
The expert evidence revealed that there was no consensus as to what the outcome of the balancing exercise should have been, thus leading to the conclusion that there was no breach of the duty of care.
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